Legal, or Illegal? Employee leaves of absence and the ADA

The Equal Employment Opportunity Commission came out this week with a fact sheet dealing with leaves of absence and the Americans with Disabilities Act. First, I say kudos to the EEOC for again providing good, readable, not-overly-technical "preventive" guidance for employers. Second, let's see what you know about the EEOC's position on leaves and the ADA. (Answers are at the bottom.)

Leaves of absence. Get it?

No. 1: You provide seven days of sick leave a year to your employees. If an employee wants to take a sick day, all he has to do is call in sick. You don't require a doctor's note. Mildred, a breast cancer survivor, asks to take a sick day to visit her oncologist for a checkup. Since Mildred isn't sick, you require her to produce a doctor's note before you let her take the sick day.

Legal, or illegal?

No. 2: Elbert has been out on Family and Medical Leave Act leave for 12 weeks after having a heart attack. During that 12 weeks, he used up his accrued paid time off, and you don't offer disability benefits. At the end of the 12 weeks, he brings you a doctor's note saying that he will be able to return to work without restrictions after two more weeks (14 weeks total). Since Elbert has no more FMLA leave and no more paid leave, and since you don't offer other types of leave, you administratively terminate him (no-fault termination) after 12 weeks.

Legal, or illegal?

No. 3: Yolanda is a sales representative who has to take a six-week leave because of eye surgery that temporarily prevents her from being able to drive. (Assume that driving is an essential function of this job.) Yolanda returns to work without any issues. On her performance evaluation, you exclude the six weeks she was out of work in measuring her sales volume, which means she does not have six weeks of "zero" averaged in. You measure her sales volume by averaging the sales numbers from the time that she was actually at work.

Legal, or illegal?

No. 4: Mack has HIV, but he is not entitled to leave under any of your company policies. He needs treatment, and he might need a leave of absence, or he might be able to work at less-strenuous job while he gets treatment. Before you make a final decision about what to do, you schedule a meeting with Mack to engage in the ADA "interactive process."

Legal, or illegal?

No. 5: Mary is on an approved leave of absence, recuperating from a hysterectomy that she had to get because she had ovarian cancer. She is due to return to work on June 15. You call her at home on May 25 and ask her how she's doing.

Legal, or illegal?

"Just swell."

No. 6: Same Mary, same leave with a return date of June 15, same call to her home on May 25 to ask how she's doing. This time you add, "Please give me an update on June 1 as to when you are going to return to work."

Legal, or illegal?

No. 7: Viktor has taken a ridiculous (but legit) amount of intermittent, non-FMLA leave for his disability, which has caused his co-workers to suffer from overwork, which in turn has caused your business to miss deadlines and lose customers. You administratively terminate Viktor's employment because his intermittent absences are causing an "undue hardship."

Legal, or illegal?

No. 8: Lolita has degenerative disc disease, and both she and her doctor agree that she can no longer perform her job as an order picker in your distribution center. Since everyone agrees that Lolita can't do her job any more, you administratively terminate her employment.

Legal, or illegal?

No. 9: Marvin has been on an approved medical leave of absence for eight weeks. He sends you a doctor's note saying that he can return to work with restrictions at 10 weeks. You tell Marvin that he has to stay out on medical leave until he is 100 percent recovered.

Legal, or illegal?

"I have a feeling these answers will make me feel worse than I do already."


1-Illegal. You can't require more documentation from an employee with a disability than you'd require from any other employee taking a sick day.

2-Illegal, unless giving Elbert an extra two weeks of unpaid leave would be an undue hardship (doubtful!).

3-Legal, and a good and fair way to treat Yolanda.

4-Legal. You will never go wrong engaging in the ADA "interactive process."

5-Legal. It's ok to be a humane employer. (Who knew?)

6-Illegal. You can't require updates if you already have a return-to-work date.

7-Might be legal, but run it by your employment counsel first.

8-Illegal, unless you don't have any other jobs in the facility that Lolita can perform. You're supposed to at least explore the possibility of reassignment.

9-ILLEGAL! (You didn't need for me to tell you that.)

Read the whole thing. You'll be glad you did!

Deja vu! I wrote about this five years ago.

Image Credits: From flickr, Creative Commons license. Leaves by Kristine Paulus; sick woman by Mishio; sick man by Leonid Mamchenkov.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
Continue Reading



Back to Page